Gitin, 39

GITIN 39 (Adar 23) - Dedicated by Rabbi Yehoshua Wachtfogel l'Iluy Nishmas
his mother, Sarah bas ha'Rav Moshe Wachtfogel, on the day of her Yahrzeit.
Raised by her grandfather, the holy Rav Benzion Shapiro from Yerushalayim of
old, even during her years in the U.S. her house always glowed with the
holiness and warmth of the Yekirei Yerushalayim. Her presence is sorely
missed by her many friends, and certainly by her many children,
grandchildren and great-granchildren.

1) A SLAVE WHO GOES FREE THROUGH "HEFKER"

QUESTION: The Gemara quotes Ula in the name of Rebbi Yochanan, who says that
an Eved whose master makes him Hefker goes free, and, nevertheless, the
master must still give his [former] Eved a Get Shichrur. As we explained
earlier (see Insights to 38:5), the reason why the Eved needs a Get
Shichrur, even though he became free when the master made him Hefker, is
because there are two elements to the state of being an Eved -- the monetary
ownership of the Eved, and the Isurim that apply to the Eved. Being Mafkir
the Eved sets him free with regard to his monetary ownership, but not with
regard to his Isurim; to become free even with regard to his Isurim, he
needs a formal Get Shichrur.

Rebbi Aba challenges this ruling from a Beraisa which says that when a Ger
dies with no children (and no heirs), all of his property is considered
Hefker. The Tana Kama says that all of the Ger's Avadim -- both adults and
children -- go free. Aba Shaul says that only the adult Avadim go free; the
children, though, who do not have the ability to make a Kinyan on
themselves, remain Hefker and become the property of whoever makes a Kinyan
on them. According to Rebbi Yochanan, though, how can the Avadim (at least
the adult ones) acquire themselves and go free? The Avadim became Hefker
(through the death of the Ger), but they did not receive a Get Shichrur! The
Beraisa seems to contradict the view of Rebbi Yochanan, and support the view
of Shmuel who says (38a) that an Eved who becomes Hefker goes free and does
*not* need a Get Shichrur.

Why does the Gemara assume that the Beraisa poses no problem to the view of
Shmuel? How will Shmuel explain the view of Aba Shaul, who says that only
the adult Avadim of the deceased Ger go free, but not the minor Avadim? Aba
Shaul seems to be saying that Hefker alone is not enough to set an Eved
free; rather, an act of Kinyan is required, and thus an Eved who is a Katan
cannot acquire himself when he becomes Hefker!

ANSWER: TOSFOS (DH v'Chi) explains that according to Shmuel, the reason why
an Eved goes free when he becomes Hefker is because there is no longer any
dominion of a master over the Eved. In the case of an Eved who is a minor,
who does not have the ability to make a Kinyan on himself, it is considered
as though the dominion of his master is still over him.

What does Tosfos mean? The master was Mafkir him, or, in the case of the
Beraisa, the master (who was a Ger) died! How can Tosfos say that it is as
if the dominion of his master is still over him?

It seems that Tosfos means to say as the RASHBA and RAMAH say. They explain
that when Shmuel says that an Eved goes free when there is "no dominion of a
master over him," he does not mean that the Eved has no actual owner.
Rather, he means that there is no one else who *can* take ownership over
him, since, by virtue of the removal of his former master, he takes
ownership of himself. In the case of an Eved who is a Katan, the Katan
cannot take ownership of himself, and thus their remains upon him a monetary
Shibud to serve a master, but at the moment there is no master for him to
serve. Since, at the moment the Ger dies, it is *possible* for someone to be
Koneh the Eved Katan, it is considered as though "the dominion of a master"
is still upon him. Hence, the Eved requires a Get Shichrur to go free, and
when someone takes possession of the Eved Katan, his Shibud to serve someone
takes effect and he becomes that person's Eved. In contrast, when one is
Mafkir an adult Eved, at the moment that there is no one who has dominion
over him, he is Koneh himself and thus he goes free.

In a nutshell, Shmuel holds that whenever an Eved is Koneh himself with
regard to monetary ownership, he is also Koneh himself with regard to
Isurim. Since the Eved Katan is not Koneh himself with regard to monetary
ownership (since he cannot make a Kinyan), he remains an Eved completely, so
that whoever is the first one to be Koneh him acquires him as his Eved. When
an Eved Gadol becomes Hefker, since he is Koneh himself with regard to
monetary ownership, he is also Koneh himself with regard to Isurim, and he
goes free completely.